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REPUBLIC OF TRINIDAD AND TOBAGO

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					REPUBLIC OF TRINIDAD AND TOBAGO

                        IN THE HIGH COURT OF JUSTICE
                                 (Matrimonial)

No. M 432 of 1993

                             BARBARA SPENCER
                                                                 Petitioner
                                     AND

                              HENRY SPENCER
                                                                Respondent
                                     AND

                        EUSTOLIA SPENCER-CONNELL
                                                                Intervener
                                 ************

                                 JUDGMENT


Before the Honouarable Mr. Justice R. Narine

Appearances:

Mr. R. James and Mr. Moore for the Petitioner
Mr. R. Boisson for the Respondent and the Intervener

       By Notice filed on 9th August, 2004, the Petitioner applies to the Court,
inter alia, for a transfer of property order in respect of the matrimonial home
situate at L.P. No. 9 Foster Road Extension, Sangre Grande, and half the value of
three motor vehicles.
       The parties were married in December, 1984. The Petitioner was then 20
years old and the Respondent was 23. In 1993 the Petitioner filed for divorce due
to alleged violence by the Respondent. The parties were subsequently reconciled,
until the Respondent left the matrimonial home in October 2000. A decree nisi
was pronounced on 28th October, 2002. It was made absolute in February 2004.
The parties have two children, Krystie born on 12th May 1986 and Rykiel born
29th January, 1998.




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       In considering the application the Court must bear in mind the various
matters outlined in section 27(1) of the Matrimonial Property and Proceedings
Act Ch. 45 No. 51.
1.     The income, earning capacity and property of the parties.
       The Petitioner is a Teacher. She receives a salary of $4,770.00 (gross).
She has $5,000.00 in the bank. The Respondent is also a Teacher. He receives a
net income of $4,256.76
       The Petitioner alleges that the Respondent earns additional income from
driving two taxis and from doing private auto mechanical work. The Respondent
denies this. He stated in cross examination that one taxi was scrapped sometime
around 2000. He still owns HAJ 584. He denies that he owns PAS 3606. He
alleges that this vehicle was given to him to repair. The owner never returned for
it. A friend of the Respondent uses it. The Respondent values it at about
$8,000.00. He has not stated a value for HAJ 584.
       In his first affidavit filed on 11th March 2005, the Respondent denied that
he had any interest in the properties stated in the Petitioner‟s Notice filed on 9th
August 2004.
       On 20th April 2005, he filed another affidavit. In this affidavit, he stated
that he and his sister (the Intervener) acquired a parcel of land in 1983. This was
a five acre parcel. By Deed dated 7th June, 2002 and registered in September
2003, he sold his interest in the land to the Intervener for $20,000.00. The
matrimonial home stands on a portion of this land. The Respondent denies that
the Petitioner contributed to the acquisition of the larger parcel of land or to the
construction of the matrimonial home as she alleges. He claimed in this affidavit
that the house was built out of monies derived from sales of portions of the five
acre parcel.
       On 16th March, 2006 Mr. Boisson obtained leave to join Eustolia Louisa
Spencer-Connell, the Respondent‟s sister, as an Intervener. She filed an affidavit
on 29th March, 2006. She is also represented by Mr. Boisson.
       She deposed that the 5 Acre parcel was developed and sold as lots. About
24 lots were sold between 1984 and 1989 at an average price of $15,000.00 per



                                                                                Page 2 of 8
lot. They collected $360,000.00 from these sales. After deduction of expenses,
$40,000.00 was given to the Respondent and two other siblings, and the
Intervener retained $75,000.00 for herself. She pooled her resources with the
Respondent. They spent about $85,000.00 to construct and furnish what was to
become the matrimonial home. She considered herself to be half owner of the
house. The Petitioner made no financial contribution to the construction of the
house. It was agreed between the Respondent and her, that the Respondent would
live in the house with his family rent-free until he acquired sufficient resources to
build his home elsewhere.
       In February 1984, the Intervener moved into a new house she had acquired
from the National Housing Authority at Valencia.            The Petitioner and the
Respondent stayed at her home at Valencia, until they moved to the matrimonial
home sometime in 1985, or thereabouts.
       Having considered the evidence very carefully, I have serious misgivings
about the evidence of the Respondent and the Intervener with respect to the
construction of the house. In the first place, the Respondent‟s position was that he
has no interest in the house whatsoever. This shifted to the position that the
construction was financed from sales of the land belonging to his sister and to
him. His final position was to admit that he still retained half a share in the house.
       I find it rather strange, as well, that the Petitioner made no mention
whatsoever of any agreement that he had with the Intervener for the construction
of the house, as she alleges in her affidavit. Moreover, I find it unlikely, that
having acquired a house of her own, she would invest the bulk of her receipts
from the sale of the land in a house to be occupied by the Petitioner and the
Respondent. Her evidence is that she had to borrow the sum of $8,000.00 from a
relative in order to make the down payment on her own home. Why would she
invest so heavily in the construction of her brother‟s home, when it appears she
had no resources to invest in her own?
       I view with suspicion, as well, the conveyance in June 2002, registered in
September 2003, from the Respondent to the Intervener. This was while the
divorce proceedings were already before the Court. The evidence is that the



                                                                                  Page 3 of 8
parties were separated. The Respondent was living in the house. It makes no
sense that he would relinquish his interest in the land on which the house stands.
That parcel could have been excised from the remaining portion of land. The
Respondent still lives there with his new family. The clear inference to be drawn
having regard to all the circumstances, is that the Respondent conveyed the land
to his sister in order to defeat any claim the Petitioner might make in respect of
the matrimonial home.
       It seems to me that the Respondent has not made full and frank disclosure
of his income and his property. His evidence with respect to the motor vehicles
was vague, and improbable. There is no evidence as to when these vehicles were
acquired, and at what price. One of the vehicles was scrapped around 2000, while
the other, PAS 3605 was given to him for repairs by a man from Tobago whom he
is unable to locate. So the Respondent gave someone else‟s property to a friend to
use, since he was unable to locate the owner.
2.     The financial needs and obligations of the parties.
       Both parties require the usual necessities – food, clothing, shelter and
transportation. The Respondent now occupies the former matrimonial home with
his new family. The Petitioner lives with her children at her father‟s home, in
rather cramped circumstances in a two (2) bedroom apartment which she shares
with her brother Theophilus Ammon and his wife. The present accommodation
of the Petitioner and her children appears to be dilapidated and incommodious. In
addition, the Petitioner fears that her father will ask her to move out.
3.     The standard of living enjoyed by the parties.
       Both parties are teachers. The standard of living enjoyed by the parties
before the breakdown of the marriage was modest.


4.     The age of the parties and the duration of the marriage.
       The parties were married in December 1984. The Petitioner was then 20
years old, the Respondent was 23. The Petitioner filed proceedings for divorce in
1993. However, there followed a period of reconciliation, until they were finally




                                                                              Page 4 of 8
separated in late 2000. The decree nisi was pronounced in October 2002, and
made absolute in February 2004.
5.     Contributions to the welfare of the family.
       Apart from looking after the home and the family, the Petitioner assisted
in augmenting the income of the family during the marriage. She assisted the
Respondent in running a wheel balancing and alignment shop. She did sewing.
She planted short crops and reared chickens.
6.     The requirement of fairness.
       The Act requires the Court to exercise its powers so as to achieve an
outcome which is “just”. The Court must be fair to both parties. The conceptual
difficulty in carrying out this directive in a particular case is well articulated by
Lord Nicholls of Birkenhead in the recent cases of Miller v Miller and McFarlane
v McFarlane (2006) UKHL 24 in paragraph 4 of his judgment:
               “4. Fairness is an elusive concept. It is an instinctive
               response to a given set of facts. Ultimately it is grounded
               in social and moral values. These values, or attitudes, can
               be stated. But they cannot be justified, or refuted, by any
               objective process or logical reasoning.      Moreover, they
               change from one generation to the next. It is not surprising
               therefore that in the present context there can be different
               views on the requirements of fairness in any particular
               case”.
       The modern approach by the Courts in applying the principle of „fairness‟
to distribution of matrimonial assets is encapsulated in the following dictum of the
same Judge in the earlier case of White v White (2000) UKHL 54 under the rubric
“Equality”.
               “In seeking to achieve a fair outcome, there is no place for
               discrimination between respondent and wife and their
               respective roles. Typically a respondent and wife share the
               activities of earning money, running their home and caring
               for their children. Traditionally, the respondent earned the



                                                                                 Page 5 of 8
money, and the wife looked after the home and the children.
This traditional division of labour is no longer the order of
the day. Frequently both parents work. Sometimes it is the
wife who is the money-earner, and the respondent runs the
home and cares for children during the day. But whatever
the division of labour chosen by the respondent and wife,
or forced upon them by circumstances, fairness requires
that this should not prejudice or advantage either party
when considering paragraph (f), relating to the parties‟
contributions.   This is implicit in the very language of
paragraph (f): „…the contribution which each has made or
is likely… to make to the welfare of the family, including
any contribution by looking after the home or caring for the
family.‟   If, in their different spheres, each contributed
equally to the family, then in principle it matters not which
of them earned the money and built up the assets. There
should be no bias in favour of the money-earner and
against the home-maker and the child-carer. There are
cases, of which the Court of Appeal decision in Page v
Page (1981) 2 FLR 198 is perhaps an instance, where the
court may have lost sight of this principle.
A practical consideration follows from this. Sometimes,
having carried out the statutory exercise, the judge‟s
conclusion involves a more or less equal division of the
available assets. More often, this is not so. More often,
having looked at all the circumstances, the judge‟s decision
means that one party will receive a bigger share than the
other. Before reaching a firm conclusion and making an
order along these lines, a judge would always be well
advised to check his tentative views against the yardstick of
equality of division. As a general guide, equality should be



                                                                Page 6 of 8
                 departed from only if, and to the extent that, there is good
                 reason for doing so. The need to consider and articulate
                 reasons for departing from equality would help the parties
                 and the court refocus on the need to ensure the absence of
                 discrimination.
                 This is not to introduce a presumption of equal division
                 under another guise.     Generally accepted standards of
                 fairness in a field such as this change and develop,
                 sometimes quite radically, over comparatively short
                 periods of time.”


          This was a marriage that effectively lasted for some sixteen (16) years.
Apart from her contributions to the welfare of the family, I accept that the
Petitioner contributed to the initial acquisition of the land from her savings, and
she did not sit idly by at home while the Respondent worked to provide for the
family.     She showed a great deal of industry in applying herself in various
undertakings to augment the income of the family. Having regard to all the
circumstances of the case, I can find no justification for departing from the
yardstick of equality of division.
          The Petitioner has made rather serious allegations of violence against the
Respondent. In the circumstances, the Court is not minded to satisfy her interest
by an order for occupation. Instead, the Court intends to award an appropriate
lump sum which will take into account her interest in the house and the motor
vehicles.
          The Report of Linden Scott and Associates dated 14th February, 2006
places a value of $285,000.00 on the house and the land on which it stands. I
propose to award a lump sum of $150,000.00 which I hope will assist the
Petitioner in finding accommodation of a modest standard to house herself and
her children.


ORDER:



                                                                                Page 7 of 8
1.   The Respondent is ordered to pay to the Petitioner a lump sum in the
     amount of $150,000.00 within 60 days of the date of this order.
2.   The Respondent will pay the Petitioner‟s costs.


     Dated the 15th day of December, 2006.



                                                 Rajendra Narine
                                                 Judge.




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